Joseph R. McMahon v. City of New Orleans

• Court: Louisiana Court of Appeal
• Decided: September 4, 2019
• Docket: 2018-CA-0842
• Status: Published

Opinion

JOSEPH R. MCMAHON, ET * NO. 2018-CA-0842 AL * VERSUS COURT OF APPEAL * CITY OF NEW ORLEANS FOURTH CIRCUIT * STATE OF LOUISIANA *******

CONSOLIDATED WITH: CONSOLIDATED WITH:

DARLENE WASHINGTON- NO. 2018-CA-0843 WAPEGAN, CAROLYN BLACKMAN, JOSEPH E. ALVEREZ, AND CORINNE DUCRE

VERSUS

CITY OF NEW ORLEANS

DAVID C. JARRELL NO. 2018-CA-0844

DAVID C. JARRELL NO. 2018-CA-0845

DOUGLAS M. KLEEMAN AND NO. 2018-CA-0846 GREGORY J. MCDONALD

CITY OF NEW ORLEANS APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2010-02196, DIVISION “E” Honorable Melvin C. Zeno, Judge ****** JAMES F. MCKAY III CHIEF JUDGE ****** (Court composed of Chief Judge James F. McKay III, Judge Paula A. Brown, Judge Dale N. Atkins)

BROWN, J., CONCURS WITH REASONS ATKINS, J., CONCURS FOR THE REASONS ASSIGNED BY J. BROWN

ANTHONY S. MASKA ATTORNEY AT LAW P.O. Box 2606 Hammond, Louisiana 70404 -and- JOSEPH R. MCMAHON III 2332 Severn Avenue Metairie, Louisiana 70001 COUNSEL FOR PLAINTIFFS/APPELLEES

MICHEAL L. FANTACI DEBORAH A. VILLIO JAMES C. RAFF LEBLANC FANTACI VILLIO, LLC 3421 N. Causeway Blvd., Ste 201 Metairie, Louisiana 70002 -and- SUNNI LEBEOUF NEW ORLEANS CITY ATTORNEY SHAWN LINDSAY DEPUTY CITY ATTORNEY 1300 Perdido Street Suite 5E03-City Hall New Orleans, Louisiana 70112 COUNSEL FOR DEFENDANT/PLAINTIFF

AFFIRMED

SEPTEMBER 4, 2019 In this class action litigation, the defendant, City of New Orleans, appeals

the trial court’s granting of a partial summary judgment in favor of Class Plaintiffs

Subclass 1. The trial court ordered that that the City “shall immediately refund to

the Class Plaintiffs Subclass 1 all ATES[1 ]fines and fees paid by the Class

Plaintiffs Subclass 1 for ATES tickets issued for the period January 1, 2008,

through November 3, 2010, in the amount of $25,612,690.32, together with

judicial interest[.]”2 We affirm.

FACTS AND PROCEDURAL HISTORY

In January of 2008, the City contracted with American Traffic Solutions,

Inc., for the installation of traffic cameras at various locations throughout the City

to capture images of vehicles that were speeding or violating intersectional red

lights, or both. In connection with this contract, the City enacted and began

enforcing Code of Ordinances of the City of New Orleans Chapter 154, Article

XVII, Sections 154-1704, known as the Automated Traffic Enforcement System

(ATES) ordinance.

1 (Automated Traffic Enforcement System) 2 The trial court declared that this was a final judgment pursuant to La. C.C.P. art. 1915.

1 On March 3, 2010, lead plaintiff, Joseph R. McMahon, III, filed the first

class action lawsuit in Civil District Court challenging the ATES ordinances under

local, state, and federal law. Several subsequent class action challenges were also

filed. On October 8, 2010, Mr. McMahon filed his first amended class action

petition against the City, which included a challenge to the Department of Public

Works’ (DPW) illegal enforcement, administration and fine collection of the ATES

as ruled by Judge Paulette Irons in Washington-Wagepan, et al v. City of New

Orleans, CDC No. 2010-9732.3

The City Council passed an amendment to ATES on November 4, 2010,

placing enforcement and administration of ATES sections 174-1701 through 154-

1704 under the New Orleans Police Department (NOPD). The trial court,

plaintiffs, and the City jointly agreed to consolidate several class action lawsuits

under the caption of the instant case, and on March 23, 2012, the plaintiffs filed a

“Master Petition” in the ad hoc division of Civil District Court.

The City filed a motion for summary judgment on all claims on July 31,

2012. The trial court heard oral arguments on the City’s motion for summary

judgment on August 15, 2012, but requested supplemental briefing on several

issues. On October 10, 2012, the trial court issued a judgment in favor of the City

and dismissed all of the plaintiffs’ claims. The plaintiffs timely appealed this

judgment.

On December 18, 2013, this Court reversed that judgment in part and

remanded the matter to the trial court. McMahon v. City of New Orleans, 3 On October 1, 2010, Judge Irons issued a per curiam opinion, granting the plaintiffs’ preliminary injunction against the ATES, from which the City took an emergency writ to this Court. On October 7, 2010, this Court, in Washington v. City of New Orleans, 2010-C-1399 (La.App. 4 Cir. 10/7/10), sustained the trial court’s preliminary injunction in favor the plaintiffs, holding that the City had no authority to place the enforcement and administration of the ATES, a traffic ordinance, under the DPW.

2 unpublished 2013-0771 (La.App. 4 Cir. 12/18/13). This Court found that the

plaintiffs had a vested right to seek relief from the DPW’s unlawful enforcement of

ATES. Id. On July 9, 2015, following several amendments to the Master Petition,

the trial court granted class certification to the plaintiffs. On February 8, 2017, the

trial court signed an order accepting the definition of two subclasses in the case.

On September 11, 2017, the plaintiffs filed a motion for partial summary

judgment on behalf of Subclass 1, which the trial court granted from the bench on

November 15, 2017. After discussions with opposing counsel, on December 4,

2017, the plaintiffs moved to amend the language of the judgment to bring

conformity under Louisiana law with a money judgment. On February 21, 2018,

the trial court amended the language of the partial summary judgment to include an

actual dollar amount ($25,612,690.32), and ordered that the City return this amount

to those who had paid ATES fines between January 1, 2008 and November 3,

2010. It is from this judgment that the City has taken the instant suspensive

appeal.

DISCUSSION

On appeal, the City raises the following assignment of error: the district

court erred in granting plaintiffs’ motion for partial summary judgment, finding the

entire ATES Ordinance to have been null ab initio, and ordering the return of all

fines collected under the City’s ATES Ordinance from January 1, 2008 until

November 3, 2010.

Appellate courts review the grant or denial of summary judgments de novo.

Smitko v. Gulf South Shrimp, Inc., 2011-2566, p. 7 (La. 7/2/12), 94 So.3d 750, 755.

Summary judgment shall be rendered forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

3 any, show that there is no genuine issue as to material fact, and that the mover is

entitled to judgment as a matter of law. La. C.C.P. art. 966; Smitko, supra.

In the instant case, the plaintiffs introduced three exhibits during the hearing

on their partial summary judgment: (1) a copy of the original ATES ordinance in

effect until November 4, 2010; (2) a nine-page in globo excerpt from the City’s

published 2012 annual budget containing the cover pages, index and “Statement of

Revenues” pages that contained the total ATES fees and fines collected by the City

for 2008, 2009, and 2010; and (3) requests for admissions to the City along with its

responses admitting both the validity of the City’s amounts of ATES fees and fines

collected in 2008, 2009, and 2010, and verifying that the original ATES contained

provisions that it was to be administered by the DPW until the ATES was amended

on November 4, 2010.

The plaintiffs’ three exhibits were properly admitted under La. C.C. art.

966(A)(4) and the City failed to raise any written objection to these documents in

its opposition memorandum, as required by La. C.C. art. 966(D)(2).

The plaintiffs proved that Subclass 1 was entitled to a reimbursement of all

ATES fees and fines paid for camera tickets issued prior to November 4, 2010, and

proved the amount owed. The trial court stated that “before that date of November

4, 2010, an invalid ordinance was in effect. I consider it, since it was invalid that it

had no force and effect and that any money collected under that original ordinance

must be returned.” The trial court’s ruling that ATES was void ab initio until

November 4, 2010 is also supported by this Court’s decision in Washington-

Wagepan, et al v. City of New Orleans.4 This Court found no error in the trial

court’s determination that the home rule charter provided no authority for the City

4 2010-C-1399 (La.App. 4 Cir. 10/7/10)

4 to place the enforcement and adjudication of traffic camera violations under the

auspices of the DPW.

A home rule charter government like the City, under Article 6 of the

Louisiana Constitution of 1974, enjoys the freedom and flexibility to manage its

own local affairs without undue legislative influence. Miller v. Oubre, 96-2022, p.

9 (La. 10/15/96), 682 So.2d 231, 236 (citing Kean, Local Government and Home

Rule, 21 Loy.L.Rev. 63, 66 (1975). Under Article 6, the state is supreme on state-

wide concerns, but it allows a home rule government to exercise any necessary

power or function except as may be expressly limited by its charter and the general

laws, or as may be inconsistent with other provisions of the constitution. Id. The

power of a home rule government within its jurisdiction is as broad as that of the

state, except when limited by the constitution, laws permitted by the constitution,

or its home rule charter. Francis v. Morial, 455 So.2d 1168, 1171 (La. 1984). The

City must pass ordinances in conformity with its home rule charter. Id. The City’s

charter, Section 4-501, mandates that the NOPD shall enforce traffic regulations,

while Section 154-51(b)(1) under “Traffic bureau – Establishment, duties,”

provides that a traffic bureau within the NOPD shall be responsible for “Enforcing

the street traffic regulations of the city…” Section 154-58, entitled “Power,

authority of police and fire department officials,” further provides that the NOPD

shall keep a record of all traffic violations issued within the City.

It has long been the law in Louisiana that an unlawful ordinance is in reality

no law and in legal contemplation is as inoperative as if it had never been passed.

Vieux Carre Property Owners and Associates, Inc. v. City of New Orleans, 167

So.2d 367, 371 (La. 1964); Archer v. City of Shreveport, 77 So.2d 517, 518 (La.

1955); City of New Orleans v. Levy, 64 So.2d 798, 802 (La. 1953). Louisiana

5 jurisprudence is replete with decisions striking municipal and parish ordinances as

unlawful, and therefore being considered as null and void and/or inoperative. In

Tardo v. Lafourche Parish Council, 476 So.2d 997, 999 (La.App. 1 Cir. 1985), the

First Circuit upheld a trial court’s finding that an ordinance (adopted by the

Lafourche Parish Council after the budget without the approval of the Parish

President) was invalid because it violated the Parish of Lafourche’s home rule

charter mandates. In Schmitt v. City of New Orleans, 461 So.2d 574, 577-78

(La.App. 4 Cir. 1984), this Court affirmed the trial court’s determination that

several zoning ordinances passed by the City of New Orleans were null and void as

they violated the City’s home rule charter. In Lafayette City Gov. v. Lafayette

Mun. Bd., 01-1460 (La.App. 3 Cir. 5/8/02), 816 So.2d 977, the Third Circuit

affirmed the trial court’s granting of a preliminary injunction after determining that

the Lafayette Municipal Fire & Police Civil Service Board’s passage of a civil

service rule concerning annual vacation and leave for policemen, which conflicted

with its prior agreement with the Lafayette City Government concerning the

specifics of said rule, violated the Lafayette City Government’s home rule charter.

The ATES is a traffic regulation. The City’s attempt to have the DPW

enforce a traffic regulation like the ATES was patently violative of the City’s home

rule charter. Because the DPW had no authority under the City’s home rule charter

to administer, adjudicate, and enforce the original ATES regulation, the original

ATES ordinance was unlawful, invalid, and null and void ab initio, and was “in

reality no law and in legal contemplation is as if had never been passed.” Vieux

Carre Property Owners and Associates, Inc., 167 So.2d at 371.

6 CONCLUSION

Because the ATES was an invalid ordinance, without effect, until it was

placed under the NOPD on November 4, 2010, the trial court correctly ruled for

the immediate return of the $25,612,690.32 in ATES fees and fines collected from

tickets issued to Subclass1 prior to that date. Because the ordinance was invalid,

no one in Subclass 1 ever owed any of those ATES fine payments to the City.

Accordingly, we affirm the trial court’s granting of the partial summary judgment

in favor of the plaintiffs.